Allegedly directed subordinates to drive home an off-duty Agawam police officer stopped for driving the wrong-way on a divided highway; took no action against the driver who appeared highly intoxicated to responding officers

The Enforcement Division of the State Ethics Commission issued an Order to Show Cause (“OTSC”) alleging that Agawam Police Department (“APD”) Lieutenant Edward McGovern violated G.L. c. 268A, the conflict of interest law, by giving preferential treatment to an APD officer suspected of driving her personal vehicle the wrong way on a major road in Agawam while intoxicated.

According to the OTSC, on June 29, 2012, the off-duty APD officer (the “Driver”) was stopped by police in Agawam after driving the wrong way on Route 5, a divided highway with a speed limit ranging from 45 to 55 miles per hour. The Driver was described by responding APD officers as appearing intoxicated and smelling of alcohol, having bloodshot eyes, being unsteady on her feet, and having no understanding of where she was or how she ended up there. The Driver’s car showed damage consistent with the scraping of a guard rail. The APD sergeant who notified McGovern about the traffic stop described the Driver as being “annihilated.” McGovern responded to the scene, where he was the highest-ranking officer present. After speaking with the Driver, McGovern instructed one of the APD officers to take her to her home in an APD cruiser. He did not instruct the officers to conduct field sobriety tests, offer the Driver a Breathalyzer test, issue a citation or place her under arrest. McGovern later told APD investigators he was concerned about the Driver’s emotional state.

The Hampden District Attorney (the “Hampden DA”) reviewed the APD’s internal affairs report on the incident. In a letter dated October 24, 2012, the Hampden DA described the failure to arrest the Driver or issue a criminal citation as “inexplicable,” and stated that it was reasonable to conclude that the Driver “received preferential treatment from the Agawam Police Department based upon her status as a police officer.” The letter also stated that the failure of the officers to issue a citation at the scene precluded the Hampden DA from pursuing a criminal complaint against the Driver.

Section 23(b)(2)(ii) of the conflict of interest law prohibits a municipal employee from, knowingly, or with reason to know, using or attempting to use his official position to secure for himself or others unwarranted privileges or exemptions which are of substantial value and which are not properly available to similarly situated individuals. The OTSC alleges that McGovern, as the senior officer at the scene, used his position to direct his subordinates to take a fellow police officer home without conducting field sobriety tests, offering a Breathalyzer test to the Driver, or citing or arresting the Driver, thereby conveying an unwarranted privilege or exemption of substantial value, $50 or more, to the Driver. The OTSC alleges that McGovern’s decision to direct officers to take the Driver home without taking any other action was unreasonable under the circumstances, and allowed the Driver to avoid potential criminal and civil consequences, such as the loss of her driver’s license, monetary penalties and/or incarceration.